Legislative Scrutiny: Care Bill - Human Rights Joint Committee Contents


2  The right to independent living

16. The right to independent living is enshrined in Article 19 of the Disabilities Convention. It states:

Article 19—Living independently and being included in the community

States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.

17. Part 1 of the Bill reforms adult social care. Clause 1 of the Bill establishes the overarching principle that a local authority must promote the well-being of the adult when carrying out its care and support functions for adults and carers under the Bill. The Explanatory Notes to the Bill state that the "well-being principle is not directly enforceable as an individual right", but that it carries "indirect legal weight, where a local authority's failure to follow the principle may be challenged by judicial review".[33]

18. "Well-being" is not defined precisely. However, subsection (2) provides guidance on its interpretation, which includes:

·  personal dignity;

·  physical and mental health, and emotional well-being;

·  protection from abuse and neglect;

·  control by the individual over day-to-day life (including over care and support provided to the individual and the way that it is provided);

·  participation in work, education training or recreation;

·  social and economic well-being;

·  domestic, family and personal relationships;

·  suitability of living accommodation; and the

·  individuals' contribution to society.

19. The well-being principle embodies the fundamental human rights principles of respect for dignity, non-discrimination and individual autonomy. The Government, in its human rights memorandum, states that the duty to promote well-being is consistent with Article 3 of the Disabilities Convention, which reflects these fundamental principles.[34] However, the Law Society, in its Briefing on the Bill, suggests that the failure to refer explicitly to the right to independent living as central to the well-being principle inhibits the necessary approach to the individual and their specific needs.[35]

20. In our Independent Living Report, we concluded that adult social care is a particularly important policy area in terms of independent living as adult social care policy is a key delivery mechanism for the support that many disabled people need to go about their daily lives.[36] Despite the UK having ratified the Disabilities Convention, independent living does not currently exist as a freestanding, justiciable right in UK law. Our inquiry into independent living made a series of recommendations in relation to adult social care, and we concluded that such a freestanding right to independent living should be expressly included in any forthcoming legislation on adult social care.[37] We concluded that:

    "[...] merely filling in the gaps in the current legislative framework will still not accord the right to independent living the legal status that its fundamental importance deserves".[38]

21. The Government's human rights memorandum did not provide an analysis of the measures in the Bill that promote the right to independent living. However, while not referring to the right to independent living directly, the Government's Impact Assessment states:
    "The Bill is designed to help overturn traditional approaches to disability, and implement a social model approach. This is underpinned by approaches which seek to place greater power in the hands of all service users, including disabled people. This is exemplified in setting out rights for everyone to have a personal budget, as well as consolidating the law around disabled people being able to access direct payments. This will give people greater control over the services they use. In addition, the Bill places a duty on local authorities to ensure that in the future adults who use social care services (including disabled people) will have control over their day to day life."[39]

22. Whilst some of the measures contained in the Bill go some way to promote the right to independent living, there is no specific free-standing provision to protect and promote the right to independent living. We therefore wrote to the Government to request a fuller analysis as to which provisions of the Bill promote the right to independent living. We also asked the Government to explain why it decided not to give the right to independent living a free-standing statutory basis in the Bill, suggesting that the well-being principle, established under Clause 1, could include a reference to the right to independent living.[40]

23. The Government's response to us explained its view that the well-being principle is sufficient to give effect to the right to independent living under Article 19 of the Disabilities Convention. The Government highlighted that "the well-being principle relates to outcomes and areas of an individual's life such as: control by an individual over their day to day life; participation in work, education or training; and the individual's contribution to society."[41]

24. The Government further explained that Clause 1 "requires local authorities to have regard to certain matters including: the importance of beginning with the assumption that an individual who receives care and support services is best-placed to judge their own well-being; the individual's views, wishes and feelings; and the importance of the individuals participating as fully as possible in any decisions made about them that relate to any care and support they might receive."[42]

25. In relation to Clause 1 of the Bill, the Government concluded that:

    "The principles and ideas which are central to the right to independent living as articulated in Article 19 are expressed in Clause 1 and consequently underpin Part 1 of this Bill"[43]

26. In addition to Clause 1 of the Bill, the Government set out the following provisions and explanations, which it believes promote independent living, autonomy and choice:

    "Clause 9(4)(b) Needs Assessments. A needs assessment must include an assessment of the outcomes that the adult wishes to achieve in day-to-day life.

    Clause 24(1)(c) Steps for local authority to take. The local authority must help the adult to decide how to have their needs met.

    Clause 25(3)(a) and (5) Care and Support plans. In preparing a care and support plan, the local authority must involve those adults receiving services; and in doing so, it must take all reasonable steps to reach agreement with the adult about how their needs should be met.

    Clause 30(1) Choice of Accommodation. Regulations may require a local authority to meet an individual's preference for specific accommodation. Conditions may be imposed in the regulations, for example, that the local authority is satisfied that the preferred care home is able to provide appropriate care and support to meet the person's needs.

    Clauses 31 and 32 Direct Payments. These are for both adults with and without capacity and enable people to take greater control of the care packages they receive.

    Clauses 37 and 38 Continuity of Care. These provisions will allow people greater freedom and choice about which area they want to live in."[44]

27. The provisions of the Bill in relation to continuity of care are a vital component of the right to independent living.[45] In our Independent Living Report, we urged the Government to guarantee the enjoyment of rights under Article 19 in relation to continuity of care arrangements, in particular in relation to the right to choose one's place of residence on an equal basis with others.[46]

28. The provisions, as amended during Lords' Report stage,[47] ensure that people who move from one local authority to another do so with no interruption in their care. Clause 37 provides a framework intended to achieve this, and sets out responsibilities on the relevant local authorities. Baroness Campbell of Surbiton said:

    "It is a basic human right to move freely within one's country, whether to pursue education or employment opportunities, to improve one's family life or to seek personal support [...] this is the first time that disabled people will have that right to freedom of movement if they require support".[48]

    Furthermore, Lord Howe gave a commitment that the Department of Health will review how the continuity of care arrangements are operating three years following implementation.[49]

29. We welcome the provisions in the Bill that make arrangements for continuity of care, as this is central to the right to independent living, and we encourage the Government to work closely with relevant stakeholders to develop the regulations and statutory guidance in relation to the continuity of care provisions.

30. Overall, the Government's response to us outlining additional information about the provisions of the Bill that promote the right to independent living is welcome. However, we note that the Government has not identified any provisions that might have an adverse effect on the right to independent living. For example, the new eligibility criteria for adult social care, provided for at Clause 13 of the Bill (and to be set out in further detail in regulations), could represent a potentially retrograde step in the promotion of the right to independent living under Article 19 if the national eligibility threshold is set so high as to exclude large numbers of adults from access to care and support.[50]

31. In our Independent Living Report, we concluded that:

    "While we recognise the exceptional economic circumstances facing the UK, we conclude that there is a risk of retrogression of the UK's obligations under Article 19 as a result of the cumulative impact of spending cuts and reforms. There has been particular concern about the effects of reductions in funding for local authorities, changes to Disability Living Allowance under the Welfare Reform Bill, caps on housing benefit and the closure of the Independent Living Fund, and the way in which these might interact to restrict enjoyment of the right to independent living. Many local authorities are restricting eligibility criteria for social care support. We argue that this risks breach of Article 19."[51]

32. Further, while certain provisions in the Bill may promote the right to independent living, there remains no express right in UK law. In our Independent Living Report, we considered that the existing matrix of human rights, equality and community care law, while instrumental in the protection and promotion of the right to independent living, is not sufficient.

33. We welcome, in principle, the Bill's creation of a general duty on local authorities to promote the well-being of an individual in the adult social care system as a positive step towards promoting and protecting independent living as a right. We are grateful to the Department for its detailed response to us setting out its analysis of how the well-being principle contained in Clause 1, along with other provisions of the Bill, promote the right to independent living.  We also note the importance of the continuity of care provisions in this regard. 

34. However, we are disappointed that the Government did not take the opportunity in this Bill to specifically provide for a free-standing right to independent living that could be directly enforceable by individuals in domestic law.  We recommended in our Independent Living Report that the right to independent living should be included in any forthcoming Bill on adult social care in England. We consider that the Care Bill is the most appropriate opportunity for the Government to provide the necessary legislative underpinning of the right to independent living.  We therefore call on the Government to bring forward an amendment at Commons Report Stage to amend the Bill to include a free standing provision to give concrete effect in UK law to the right to independent living.  If the Government does not do so, we ask it to explain why it does not accept the need for such free standing legislation. In our Independent Living Report, we specifically requested that the Government publish this assessment. We are not satisfied with the Government's response to this request for information thus far.

35. In any event, we recommend that the Bill be amended so that the well-being principle includes an express reference to the right to independent living. This would not be directly enforceable as an individual right, but a local authority could be challenged for a failure to promote the right when carrying out its care and support functions under the Bill. 

36. The following amendment would give effect to this recommendation.
Clause 1, page 2, after line 1, insert:

"(j) the right to living independently and being included in the community."


33   ENs Bill 123 para 40 Back

34   Department of Health Human Rights Memorandum to the JCHR, para 3.Article 3(a) of the Disabilities Convention provides for respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons. Back

35   Law Society, Second Reading Briefing, para 1 Back

36   Joint Committee on Human Rights, Twenty-third Report of Session 2010-12, para 163 Back

37   Joint Committee on Human Rights, Twenty-third Report of Session 2010-12, para 65 Back

38   Joint Committee on Human Rights, Twenty-third Report of Session 2010-12, para 67 Back

39   Department of Health, Impact Assessment, Care and Support Legal Reform (Part 1 of the Care Bill) IA No 6107, 8 May 2013, Annex A, p 63 Back

40   Letter from the Chair to the Minister of State for Care and Support, Norman Lamb MP, 17 July 2013, Qs.3 & 4 Back

41   Letter from the Minister of State for Care and Support, Norman Lamb MP, to the Chair, 10 Sep 2013, Q. 3 Back

42   Ibid. Back

43   Ibid. Back

44   Ibid., Q.4 Back

45   Joint Committee on Human Rights, Twenty-third Report of Session 2010-12, Implementation of the Right of Disabled People to Independent Living, HL Paper 257/HC 1074, paras. 170-175 Back

46   Ibid., para 175 Back

47   HL Deb., 14 October 2013 cc. 312-318 Back

48   Ibid. Back

49   Ibid. c. 316 Back

50   Joint Committee on Human Rights, Twenty-third Report of Session 2010-12, para 138; Law Society, Care Bill Lords' Second Reading Briefing, para 10 Back

51   Joint Committee on Human Rights, Twenty-third Report of Session 2010-12, Summary, p. 1 Back


 
previous page contents next page


© Parliamentary copyright 2014
Prepared 27 January 2014